Previously I wrote about Judge Posner’s recent lecture at Chicago-Kent’s Symposium on the Supreme Court and the American Public. The judge took members of the Supreme Court to task for what he sees as their excessive and occasionally undignified roles as public intellectuals. Although Judge Posner is certainly right that the frequency of justices participating in public intellectual activities has increased, there is a long and colorful history of members of the Supreme Court inserting themselves, for one reason or another, into public debate.
At the same symposium, I gave a paper entitled “Beyond the Opinion: Why Do Supreme Court Justices Talk to the Public?” My presentation revolved around a case study of Justice Hugo L. Black and his late-career experience as a reluctant but ultimately quite effective public figure.
Justice Black spent most of his career on the High Court conscientiously avoiding making news for his off-the-bench activities. His time on the Court had gotten off to an epically bad start when, just a month after being confirmed by his colleagues in the Senate, a journalist broke the story that the newest justice had been a member of the Ku Klux Klan in Alabama early in his political life. Black, who was in Europe at the time, cut short his vacation and returned home to defend himself in a nationally broadcast radio address. He basically said that he had been a member of the KKK but was no longer, and that his record in the Senate and his personal relationships with blacks, Catholics, and Jews showed that he was not a bigot. (Newsweek’s headline following the speech: “I Did Join, I Resigned; The Case Is Closed.”) The speech turned out to be remarkably successful in deflating the controversy.
For at least two decades following this embarrassing episode, Black retreated from the public spotlight. He would, as justices like to say, let his written opinions speak for themselves. Through the 1940s and 1950s, as Black defined for himself in his judicial writings a distinctive approach to constitutional interpretation, as well as a notably accessible language of expression, he was regularly urged to present his views in a more public setting. He refused. “Should I conclude to deliver lectures anywhere,” he wrote to a friend in 1959, “it will be over the protests of certain inner voices that keep telling me that the best thing I can do is tend to my knittin’ here at home.”
Eventually he did begin to accept a few of these invitations, however, and during the 1960s he delivered several much-discussed lectures and public interviews in which he laid out his views on the Constitution and the work of the Supreme Court.
The highlight of Black’s late-life career as a public intellectual came in 1968 when the 82-year-old justice became the first justice to sit for a feature-length television interview. CBS broadcast the interview on primetime on December 3, 1968. His wide-ranging remarks made for surprisingly powerful television.
Early in the interview, Black pulled a well-worn copy of the Constitution from his suit pocket. “I don’t know it by heart,” he confessed. “[M]y memory is not that good. When I say something about it, I want to quote it precisely.” When questioned about the attacks on the Court for its decisions protecting the rights of criminal defendants, Black went on the offensive. “Well, the Court didn’t do it…. The Constitution-makers did it…. They were the ones that put in every one of these amendments…. And so, when they say the Court did it, that’s just a little wrong. The Constitution did it.” He suggested that the Court’s implementation ruling in Brown v. Board of Education (1955), with its “all deliberate speed” formula, was ill-advised. (This was the page-one headline story in newspapers the following day.) At one point, the 82-year-old justice picked up a volume of the U.S. Reports to read the concluding lines of his opinion in Chambers v. Florida (1940) in which he wrote that “courts stand against any winds that blow as havens of refuge for those who might otherwise suffer because they are helpless, weak, outnumbered, or because they are nonconforming victims of prejudice and public excitement.” It left him wiping away tears. The interview was awarded an Emmy for the year’s best cultural documentary.
(Full length audio of the interview is available through Oyez; the transcript of the interview was eventually published in Southwestern University Law Review 9 (1977): 937-951.)
Justice Black could put on quite a show in these off-the-bench settings. In terms of communicating with a general audience, in serving as a spokesperson for the Court, in expressing his deepest commitments about the law and the Constitution and the Court, in putting on display a sense of passionate commitment as well as gravitas, he might very well be unequaled among the Justices who have served on the Court.